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FCMC 1646 /2017
[2019] HKFC 185
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO 1646 OF 2017
________________________
BETWEEN
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CKY |
Petitioner |
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and |
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YKS |
Respondent |
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Before: Deputy District Judge R So in Chambers (Not open to public)
Date of Hearing: 3 September 2018
Supplemental Written Submissions of the Respondent: 8 November 2018
Supplemental Written Submissions of the Petitioner: 9 November 2018
Date of Judgment: 12 July 2019
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J U D G M E N T
(Maintenance pending suit)
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The Application
1. The petitioner wife (“Wife”) applied for herself and for the two children of the family (collectively “Children”) by way of Summons for maintenance pending suit against the respondent husband (“Husband”):-
(a) HK$2,000 per month for herself;
(b) HK$13,000 per month for the Children; and
(c) costs.
2. Subsequently, in the submissions of Ms Chiu, Solicitor for the Wife, she asked for HK$2,000 per month for the Wife and HK$20,000 per month for the Children.
3. By the order dated 21st March 2018, by consent, it was ordered that the Husband do pay an interim interim maintenance pending suit in the monthly sum of HK$10,000.
4. The Husband opposed to the Wife’s application. According to the Husband, he could not even afford to pay the agreed sum of HK$10,000. It is the Husband’s stance that no maintenance pending suit should be paid to the Wife and that he could only afford to pay HK$7,500 per month as maintenance pending suit to the Children, which he thinks is a reasonable sum.
5. The Wife had filed her supporting affirmation for the application (“Affirmation in support”) and the Husband had filed his affirmation to oppose the application (“Affirmation in opposition”). No affirmation in reply had been filed by the Wife in compliance with the time stipulated by the Court.
6. Shortly before the hearing for maintenance pending suit, the Wife filed her affirmation in reply (“Affirmation in reply”) without leave of the Court.
7. At the maintenance pending suit argument hearing, the Husband opposed to the Wife’s filing of the Affirmation in reply out of time and without leave of the Court. At the same time, the Solicitors for the Husband, Ms Cheung, provided copy of documents in the skeleton submissions, which had not been exhibited anywhere in the Husband’s Affirmation in opposition, but she submitted that those documents are relevant and important for the Court’s consideration. The Court expressed dissatisfaction of the how the hearing had been prepared and conducted.
8. The Court has to emphasise that non-compliance of the Court order and rules of the Court is not to be tolerated and late application for adducing new evidence is not desirable, even if it was due to the late instructions from the respective clients.
9. Solicitors acting for the parties had been sensible to agree to :-
(a) retrospective leave to the Wife to file and serve her 5th affirmation (ie. her Affirmation in reply);
(b) leave to the Husband to file and serve his 4th affirmation (“Husband’s Supplemental Affirmation”);
(c) leave to the Wife to file and serve her supplemental affirmation in reply (“Wife’s Supplemental Affirmation”), if any; and
(d) there be no order as to costs for that hearing.
The parties had also agreed that after filing of these affirmations and the supplemental submissions, if any, the maintenance pending suit hearing be adjourned for paper disposal, so as to save costs of the parties.
Background of the case
10. The Wife was born in 1984 and is now 34 years old. As stated in her Form E, she is now working as a merchandiser, earning a monthly salary of HK$19,825.
11. The Husband was born in 1980 and is now 38 years old. As stated in his Form E, he is now working as a mechanical engineer, earning a monthly salary of HK$43,824.
12. The parties were married in September 2013. After getting married, the parties had lived with the Wife’s parents in the property in Yuen Long, which was owned by the Wife’s parents (“Yuen Long Property”).
13. In August 2014, the elder daughter was born (“Daughter”) and she is now 4 years old. In June 2016, the younger son (“Son”) was born and he is now 2 years old.
14. In June 2016, shortly after the Son was born, there was an argument. In September 2016, the Husband moved out of the Yuen Long Property.
15. The parties had reconciled and therefore in mid January 2017, the parties together with the Children moved to a property in Yuen Long (“Former Matrimonial Home”), which was close to where the Wife’s parents lived.
16. On 21 January 2017, there was an incident of alleged violence. After the incident, the Wife, together with the Children, moved back to live with her parents at the Yuen Long Property.
17. Subsequently, the Wife, together with the 2 Children and her parents had moved to live at another property in Yuen Long, and she had applied for non-disclosure of address.
18. The Wife initiated divorce proceedings on 13th February 2017 based on unreasonable behaviour of the Husband. The Husband does not dispute the main suit.
19. The parties had dispute about children matters. Social Investigation Reports and Psychologist Reports had been called for. Parties had initially agreed by consent that the care and control of the Children be to the Wife. Subsequently, the parties had agreed on the issues of custody and access as well.
20. By the order dated 21 March 2018, by consent, it was ordered that the Husband do pay an interim interim maintenance pending suit in the monthly sum of HK$10,000.
The legal principles
21. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable. Under section 5 of MPPO, maintenance pending suit could be ordered for the children of the family.
22. The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach. In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-
“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the ‘immediate and reasonable needs’ of the wife and son.
35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.
36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.
37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:
(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.
(b) A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.
(c) In every maintenance pending suit application there should be a specific maintenance pending suit bedget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.
(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.
38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”
23. It is also well established that in ancillary relief proceedings, which include maintenance pending suit, there is a duty on both parties to make full and frank disclosure of the relevant materials to enable the court to exercise its discretion to make the order, and if the court is of the view that the evidence disclosed by a party is deficient, inferences may be drawn by the court from such defective disclosure against that party when making the appropriate order.
The wife’s case
24. It is the Wife’s case that the Husband had been paying her HK$10,000 per month for family expenses. In addition to that, the Husband had been paying her a monthly sum of HK$2,500 for her own use. However, after about September 2016, the Husband had greatly reduced the monthly sum to about HK$5,500 and he had stopped paying her the additional sum of HK$2,500.
25. Since about September 2017, the Husband had been paying her a monthly sum of only HK$6,000.
26. It is the Wife’s case that with her present monthly income, with the Husband only paying HK$6,000 per month, it is insufficient to meet the ends. She is now the one paying for all the expenses, with her parents frequently supporting her financially.
27. According to the Wife’s Form E filed on 21 April 2017, the total monthly expenses were HK$32,424.46, with the breakdown as follows :-
(a) HK$7,437 for the general expenses;
(b) HK$13,967.46 for the Wife’s personal expenses; and
(c) HK$11,020 for the Children’s expenses.
28. According to the Wife’s Affirmation in support filed on 29 December 2017, the total monthly expenses were HK$36,558.36, with the details as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Utilities |
1,800 |
| Food |
4,200 |
| Miscellaneous household expenses |
300 |
| Helper ($4,310 x 1/3) |
1,437 |
| Total: |
7,737 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
2,000 |
| Transportation |
800 |
| Clothing / Shoes |
800 |
| Personal grooming |
500 |
| Entertainment and presents |
500 |
| Holiday |
500 |
| Medical / dental |
500 |
| Tax |
685.66 |
| Insurance premia |
1,048.72 |
| Mobile monthly fees |
106 |
| Insurance premia of the Wife’s mother |
2,509 |
| Medical expenses for the pet |
850 |
| Food and comestic expenses for the pet |
1,500 |
| Mobile purchase monthly instalment |
534 |
| Saving fund |
1,165.41 |
| Camera purchase monthly instalment |
346.27 |
| Total: |
14,345.06 |
For Children expenses:-
| Items |
Amount HK$ |
| School fees (for Daughter) |
559 |
| School books and stationery |
150 |
| School transportation |
670 |
| Medical / dental |
1,500 |
| Extra-curricular activities |
600 |
| Entertainment / presents |
600 |
| Holiday |
600 |
| Clothing / shoes |
1,000 |
| Insurance premia |
2,297.32 |
| Other transportation |
400 |
| Children caring fees (to the Wife’s mother) |
5,500 |
| School uniform |
100 |
| Others: buying books / toys |
500 |
| Total: |
14,476.32 |
29. In the Wife’s Affirmation in reply dated 29 August 2018, the Wife had updated some expenses, with some items deleted and some new items included. The total monthly expenses are HK$42,303, with the details summarised as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Utilities |
1,800 |
| Food |
6,000 |
| Miscellaneous household expenses |
300 |
| Helper |
6,500 |
| Total: |
14,600 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
2,000 |
| Transportation |
800 |
| Clothing / Shoes |
800 |
| Personal grooming |
500 |
| Entertainment / presents |
500 |
| Holiday |
500 |
| Medical / dental |
500 |
| Tax |
0 |
| Insurance premia |
1,048.72 |
| Mobile monthly fees |
106 |
| Insurance premia of the Wife’s mother |
2,509 |
| Medical expenses for the pet |
850 |
| Food and cosmetic expenses for the pet |
1,500 |
| Mobile purchase monthly instalment |
534 |
| Saving fund |
0 |
| Camera purchase monthly instalment |
346.27 |
| Total: |
12,494 |
For Children expenses:-
| Items |
Amount HK$ |
| School fees |
4,331 |
| School books and stationery |
300 |
| School transportation |
1,340 |
| Medical / dental |
1,500 |
| Extra-curricular activities |
1,080 |
| Entertainment / presents |
600 |
| Holiday |
600 |
| Clothing / shoes |
1,000 |
| Insurance premia |
3,358 |
| Other transportation |
400 |
| Children caring fees (to the Wife’s mother) |
0 |
| School uniform |
200 |
| Others: buying books / toys |
500 |
| Total: |
15,209 |
30. The Wife is of the view that the expenses she has stated are reasonable. The Wife points out that the Husband is earning much more than she does. The expenses as stated by the Husband in his Form E and his affirmations have been exaggerated. The Wife believes that the Husband has the ability to pay for the amounts she now asks for, ie. HK$2,000 per month for her and HK$20,000 per month for the Children.
The husband’s case
31. It is the Husband’s case that the Wife’s expenses had been exaggerated. The Husband also disputes about the Wife’s version in relation to the amounts paid by the Husband when they lived together. According to the Husband, :-
(a) Since after getting married, as the parties lived with the Wife’s parents at the Yuen Long Property, the Husband had been paying HK$4,500 as the rental payment for the Wife’s parents.
(b) Since the Daughter was born in August 2014, in addition to HK$4,500, the Husband had been paying HK$2,500 to the Wife for the expenses of the Daughter.
(c) Since the Son was born in June 2016, apart from the continuation of the rental payment of HK$4,500 to the Wife’s parents, the Husband had been paying the monthly sum of HK$5,500 to the Wife for the expenses of the Daughter and the Son. In addition, the Husband paid the Wife the monthly sum of HK$2,000 for the family’s expenses for the weekends. Besides, the Husband also paid for the insurance premia of the Children and paid for the Daughter’s school fees directly.
(d) Since about September 2017, as the Daughter started kindergarten, there is no need to pay for the school fees, the Husband had been paying the Wife a monthly sum of HK$6,000 for the expenses of the Children.
(e) The Husband denies having paid HK$2,500 to the Wife for her own use as alleged.
(f) The Husband also denies having paid HK$10,000 per month for family expenses as alleged. The Husband explained that HK$4,500 had been used to pay for the rental to the Wife’s parents.
32. According to the Husband, he had not been paying HK$4,000 to his parents since April 2018, so that he could afford to pay for the interim interim maintenance in the monthly sum of HK$10,000.
33. It is the Husband’s view that the finance between the parties have been independent all along and the Wife has always been able to afford her own expenses. Therefore, the Husband disagrees to pay any maintenance pending suit for the Wife.
34. According to the Husband’s Form E filed on 6 April 2017, the total monthly expenses were HK$42,995, with the details as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Rent |
12,000 |
| Utilities |
1,500 |
| Food |
1,600 |
| Total: |
15,100 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
4,030 |
| Transportation |
1,500 |
| Clothing / Shoes |
200 |
| Personal grooming |
100 |
| Holiday |
400 |
| Tax |
1,000 |
| Insurance premia |
3,425 |
| Contribution to parents |
4,000 |
| Others: engineering membership fee |
400 |
| Total: |
15,055 |
For Children expenses:-
| Items |
Amount HK$ |
| School fees |
3,640 |
| Dental/medical |
800 |
| Holiday |
400 |
| Insurance premia |
2,000 |
| Children caring fees |
5,500 |
| Others: miscellaneous |
500 |
| Total: |
12,840 |
35. In the Husband’s Supplemental Affirmation dated 28 September 2018, the Husband had updated some expenses, with some items deleted and some new items included. The total monthly expenses are HK$49,822, with the details as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Rent |
13,000 |
| Utilities |
700 |
| Food |
1,500 |
| Miscellaneous household expenses |
1,300 |
| Total: |
16,500 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
4,500 |
| Transportation |
1,200 |
| Clothing / Shoes |
1,000 |
| Personal grooming |
500 |
| Entertainment / presents |
500 |
| Holiday |
500 |
| Medical / dental |
200 |
| Tax ($86,520/12) |
7,210 |
| Insurance premia |
392 |
| Interim interim maintenance |
10,000 |
| Contribution to parents |
0 |
| Saving |
1,200 |
| Repayment to banks ($1,437 to East Asia Bank and $1,891 to HSBC bank) |
3,328 |
| Others: engineering membership fee |
400 |
| Total: |
30,930 |
For Children expenses:-
| Items |
Amount HK$ |
| Entertainment / presents / holiday |
400 |
| Insurance premia for the Children |
1,992 |
| Total: |
2,392 |
36. As submitted by Ms Cheung, in view of the Husband’s income and his total monthly expenses, as stated in his Supplemental Affirmation, he can only afford to pay HK$7,500 per month. According to the Husband, he is of the view that the Children’s total monthly expenses should only be HK$12,533 (HK$HK$7,054 of the share on general expenses + HK$5,479 of Children’s expenses). Ms Cheung further submitted that with the Wife‘s income of HK$19,825, there is sufficient amount for her to pay for herself and the Children, with the Husband paying only HK$7,500 per month.
37. It is the Husband’s case that the maintenance pending suit for the Children should be reduced from HK$10,000 to HK$7,500 per month.
Issues of the case
38. The issues for the court’s determination in this hearing are as follows :-
(a) What are the reasonable expenses for the Wife and the Children? (Issue 1)
(b) What is the ability to pay of the Husband? (Issue 2)
(c) What is/are the sum(s) to be ordered? (Issue 3)
What are the reasonable expenses for the Wife and the Children? (Issue 1)
39. The Husband does not dispute the Wife’s expenses on utilities (HK$1,800), miscellaneous household expenses (HK$300), meals out of home for the Wife (HK$2,000), transportation for the Wife (HK$800), clothing / shoes for the Wife (HK$800), personal grooming for the Wife (HK$500), entertainment / presents for the Wife (HK$500), holiday for the Wife (HK$500), medical / dental (HK$500), insurance premia for the Wife (HK$1,048.72), mobile monthly fees (HK$106), medical / dental for the Children (HK$1,500) and other transportation for the Children (HK$400).
40. I will go through the disputed items in turn. I have to make it clear that at this stage, the Court has to balance the reasonable needs of the Wife and the Children, and also the ability of the Husband to pay on an interim basis. I have to emphasise that it is not the case that any amount claimed without receipts or supporting documents cannot be considered. At the same time, any amount claimed with receipts does not automatically mean they are justifiable and reasonable. Some analysis will be conducted by the Court on a broad brush approach.
41. In undertaking this balancing exercise, the Court will adopt a broad brush approach and not a detailed investigation of the financial positions of the parties, and at the same time, bearing in mind the marital standard of living of the parties.
42. Regarding the marital standard of living, parties have explained in their respective Form E and affirmations. From the evidence before me, I am of the view that the family had enjoyed an average standard of living during the marriage.
(a) General expenses
43. For general expenses, the Husband disputes the items of food and helper.
(i) Food
44. The Wife asks for HK$6,000 under this head. The Husband disagrees and only agrees to HK$4,200, which was the sum the Wife claimed in her Form E and in her Affirmation in support. The Husband pointed out that in the Wife’s Affirmation in support, she only claimed HK$4,200, but after 8 months, the amount has increased by 43% to HK$6,000, which is difficult to understand and to accept such an increase. The Husband only agrees to HK$4,200.
45. The Wife explained that at the time the Affirmation in support was filed, as the Son was very young, he was fed mainly on breast-feed milk, some congee and rice congee for the past 12 months before the filing of the Affirmation in support. But eventually, as he is growing up, more expenses are spent on food.
46. I can understand that when the Son is no longer on breast-feed milk, more expenses will have to be spent on food. However, at the time when the Wife filed her Affirmation in support in December 2017, the Son was 1.5 years old (as he was born in June 2016). With the Wife’s evidence, the Son was mainly fed on breast-feed milk, congee and rice congee for the 12 months before filing the Affirmation in support.
47. I am of the view that when the Wife estimated the expenses on food in the sum of HK$4,200, some allowance must have already been made for the Son. Even if there is an increase in the Son’s expenses for food, it should not be to the extent of 43% increase from HK$4,200 to HK$6,000. Without any substantiated evidence to justify the increase, on a broad brush approach, I will allow some increase, but not to the extent the Wife claims. I rule that the reasonable sum under this head is HK$4,500.
48. Besides, the Wife is working full time. A sum of HK$2,000 had been considered in the meals out of home. With the Wife’s version, she pays the helper an additional sum of HK$1,053 for food, which means the food for the helper will be not be covered under this head.
(ii) Helper
49. The Wife asks for HK$6,500 under this head. The Husband disagrees and only agrees to HK$1,437, which was the sum the Wife claimed in her Form E and in her Affirmation in support. The Wife also showed the calculation of the sum HK$1,437 (ie. HK$4,310 / 3). My understanding is that, as the Wife has been living with her parents, she is of the view that the proportion of expenses for the helper to be shared by herself and the Children is only one-third. The Husband agreed to the sum previously stated by the Wife.
50. However, in the Wife’s Affirmation in reply, she had increased the sum to HK$6,500. It should be noted that the Wife had taken out the child caring fees of HK$5,500 to be paid to her mother.
51. According to the Wife, as her mother is getting older, it was agreed with her mother that the helper will be responsible for taking care of the Children, and therefore the Wife will stop paying any child caring fees to her mother. Instead, the Wife will pay the helper in full.
52. I accept that as the Wife is a working mother, she needs someone to take care of the Children, especially at their young age at the moment. It could not be taken for granted that the Wife’s mother could take care of the Children full time, to replace the helper. However, it calls for explanation why at this point in time that the Wife had reached this agreement with her mother. Without hearing evidence and without having witnesses cross-examined, I make no further comments or finding of facts of whether it is the truth that the Wife is genuinely paying for all the expenses of the helper, and that the helper is only responsible for taking care of the Children. At this interim stage, I am of the view that it is reasonable for the Wife to pay for the expenses of the helper.
53. However, I have reservation as to the sum claimed by the Wife. She explained the sum claimed for includes HK$4,410 for basic salary, HK$1,053 for food allowance, HK$50 for insurance, HK$8,400 of agency fees and HK$2,500 for air ticket once every 2 years. Without providing any substantiated evidence or documents of the need of the agency fees (as it would not be needed if the same helper is employed), and without substantiating the amount claimed for the agency fees and the price of the air ticket, I am of the view the total amount claimed by the Wife is excessive. On a broad brush approach, I rule that a total sum of HK$6,000 is reasonable under this head.
(b) Personal expenses of the Wife
54. For the personal expenses of the Wife, the Husband disputes the items of insurance premia of the Wife’s mother, medical expenses for the pet, food and cosmetic expenses for the pet, mobile purchase monthly instalment and camera purchase monthly instalment. It is the Husband’s stance that no amount should be allowed for these items in dispute.
(i) Insurance premia of the Wife’s mother
55. As this is not personal expenses of the Wife, I cannot see how the Wife could justify this item at this interim stage. While acknowledging that being filial to a parent is a virtue, I am of the view that the Wife is at liberty to pay for the insurance premia for her mother with her own income or saving, if she could afford. But when we are considering the reasonable personal expenses at this interim stage, I disallow this item.
(ii) Medical expenses for the pet
(iii) Food and cosmetic expenses for the pet
56. I will consider these 2 items together. The Wife asks for HK$850 for medical expenses for the pet and HK$1,500 for food and cosmetic expenses for the pet. The Husband explained in his Affirmation in opposition that the reason he disagrees to these 2 items is that the pet belongs to the Wife’s parents, and therefore the Wife should not be responsible for these expenses. The Wife did not reply in this regard and she did not deny the Husband’s allegation.
57. Based on the evidence before me, I do not see the Wife having provided sufficient and substantiated evidence or documents to justify these 2 items and the amounts claimed to be reasonable at this interim stage. I will disallow these 2 items.
(iv) Mobile purchase monthly instalment
(v) Camera purchase monthly instalment
58. I will consider these 2 items together. The Wife asks for HK$534 for the mobile purchase monthly instalment and HK$346.27 for the camera purchase monthly instalment. The Husband explains in his Affirmation in opposition that he disputes these 2 items because he is of the view that the Wife should not buy an expensive mobile and if the Wife is financially tight, she should not have bought the camera.
59. The Wife explains that she has been using smart phone during marriage and pointed out that it was because of the incident on 21 January 2017, her mobile was broken because of the Husband. In relation to the camera, the Wife explained that she uses the camera to take photos for the Children and also helps the Children when they need to take photos for their homework.
60. While replacing a smart mobile is understandable, especially when the old one is broken, for whatever reason, I have to point out that at this interim stage, the Court should only consider recurring costs of living, that are reasonable and immediate. The monthly instalment payment is only the mode of payment chosen to buy items for long term use, which I am of the view not recurring costs of living. Besides, it is factually disputed whether there is the need to buy the mobile. I therefore disallow this item at this interim stage.
61. For the camera purchase monthly instalment, I adopt the same analysis. Besides, from the evidence before me, I cannot see the justification for purchasing a camera, especially when the Wife is in financial constraint as alleged. Therefore, I disallow this item at maintenance pending suit hearing.
(c) Expenses for the Child
62. For expenses for the Children, the Husband disputes the items of school fees, school books and stationery, school transportation, extra-curricular activities, entertainment / presents, holiday, clothing / shoes, insurance premia, school uniform and the buying of books / toys.
(i) School fees
(ii) School books and stationery
(iii) School transportation
(iv) School uniform
63. I will consider these items together. The Wife asks for HK$4,331 for school fees, HK$300 for school books and stationery, HK$1,340 for school transportation and HK$200 for school uniform. The Husband disagrees. He is of the view that the reasonable sum be HK$559 for school fees, HK$150 for school books and stationery, HK$670 for transportation and HK$100 for school uniform, which are the sums the Wife had stated in her updated expenses in her Affirmation in support.
64. The Wife explained why there is an increase in these sums. The main reason is that, the amounts under these heads as stated in the Affirmation in support was for the Daughter only. Now, as the Son will start preparatory class commencing September 2018, which is not sponsored by the government allowance, the school fee costs a lot per month. For the Daughter, as her school fees in kindergarten is sponsored by the government allowance, her school fee is only HK$559. The total school fees for the Children per month are HK$4,331 (HK$559 for the Daughter and HK$3,772 for the Son). For other school expenses items, the Wife has doubled the amounts claimed, as the need of the Son is taken into account.
65. The Husband opposes, as he is of the view that there is no need for the Son to study preparatory school. He has explained his reasons in his affirmations, including, inter alia, the Son can learn from play group and as he is a younger sibling, the Son can learn and play with the Daughter.
66. The Wife strongly disagrees with the Husband’s view. She is of the view that what a child can learn from going to school is different and much more than he can learn from a play group.
67. There is no absolute right or wrong in joining or skipping preparatory class. But I notice that the Son has, at the moment, already started the preparatory school. I also notice that it is anticipated that the school fees could be much reduced, like what happened to the Daughter, as it could be sponsored by government allowance when the Son begins kindergarten. At this interim stage, I am of the view that the amounts under these few heads of school expenses for the Children are reasonable.
(v) Extra-curricular activities
68. The Wife asks for HK$1,080 under this head. The Wife explained that she claimed HK$600 previously, as it was the pre-school playgroup expenses of the Son. She now asks for HK$1,080, as the Daughter shall be attending gym class of HK$480 and drawing class of HK$600 per month.
69. The Husband disagrees, and he is of the view that HK$600 for playgroup expenses for the son is reasonable (while the Husband is of the view that playgroup could replace the need to attend preparatory school). For the Daughter, he only agrees that she chooses one class only. In paragraph 11 of the Husband’s Supplemental Affirmation, he states that he agrees HK$600 for the Daughter and HK$600 for the Son.
70. As I had ruled above that the school expenses of the Son, including school fees, I am of the view that no pre-school playgroup expense is needed for the Son under this head. For the expenses of the Daughter, I am of the view that HK$600 is a reasonable sum, taking into account the age of the Daughter and the background of the parties. I therefore rule that HK$600 is a reasonable sum under this head at this interim stage.
(vi) Entertainment / presents
(vii) Holiday
(viii) Buying of books / toys
71. I will consider these 3 items together. The Wife asks for HK$600, HK$600 and HK$500 for these respective heads, making it a total sum of HK$1,700. The Husband disagrees. He is of the view that a total sum of HK$1,000 should be sufficient for expenses under these 3 heads.
72. In view of the Children’s age, I am of the view that they don’t need to spend that much under these 3 heads. Besides, the books and toys can be used by both Children. With a broad brush approach, I am of the view that a total sum of HK$1,200 is reasonable for the Children, roughly HK$400 under each head.
(iv) Clothing / shoes
73. The Wife asks for HK$1,000 under this head. The Husband disagrees. He is of the view that HK$500 is a reasonable sum. I agree that with the age of the Children, they don’t need to spend too much on clothing / shoes. However, as children are growing fast, buying sufficient clothes is essential. With a broad brush approach, I am of the view that HK$800 is reasonable for the Children.
(x) Insurance premia
74. For the insurance premia for the Children, I will consider the Wife’s and the Husband’s stance together in this section.
75. The Wife asks for HK$2,297.32 under this head in her Affirmation in support (HK$1,593.33 for the Daughter + HK$703.98 for the Son). In the Wife’s Supplemental Affirmation, she had increased the sum to HK$3,358. The Wife explained that she had started an educational insurance policy for the Son, which was the same as the one for the Daughter. Therefore, the annual insurance premia for the Son had increased from HK$8,447.8 to HK$21,177.40 per annum.
76. The Husband disagrees to the Wife’s case and he is of the view that nothing should be included under this head. The reason is that, according to the Husband, he has bought new insurance policy for the Daughter and the Son respectively, and there is a sum of HK$1,992 per month incurred for the total amount of insurance premia for the Children he now has to pay. Therefore, the Wife should stop payment to the existing insurance policy for the Children and no expenses under this head should be provided for the Wife’s expenses on Children.
77. For the Daughter’s insurance, the Husband agreed that he used to pay for the Daughter’s insurance premia of about HK$2,000 at least since June 2016. According to the Husband, in about October 2016, he had informed the Wife that he had bought a new insurance policy for the Daughter and the Wife did not oppose. The reason for buying the new insurance policy for the Daughter is that the new insurance policy was about HK$1,000 cheaper than the existing one. The Husband is of the view that as there is the new policy he has bought for the Daughter, the Wife can stop payment for the existing insurance policy for the Daughter.
78. The Wife disagrees. She disputed the allegation of having agreed to the buying of the new insurance policy for the Daughter. She pointed out that the insurance policy for the Children was bought with the consent by the parties before they separated. There is no basis for the Husband to buy another policy for the Daughter, while asking the Wife to stop payment to the existing policy.
79. For the Son’s insurance, the Wife explained that the increase in the insurance premia for the Son (from HK$8,447.8 to HK$21,177.4 per annum) was because of the new educational insurance policy bought in January 2018. She has bought the new policy, which is the same as the one she has got for the Daughter, as she wishes the Son to have the same protection as the Daughter.
80. The Husband disagrees to the Wife’s allegation. He is of the view that it is not reasonable at all for the Wife to buy such expensive insurance policy for the Son. On the other hand, it is the Husband’s case that he has bought insurance policy for the Son. The total monthly insurance premia for the Children only costs about HK$2,000, which is much less than the sum the Wife claims.
81. I notice that there are factual disputes as to whether the Wife had agreed to the Husband buying new policies for the Children. It seems that the Wife does not dispute she had bought the new educational insurance policy for the Son without informing the Husband. Without making factual findings, I find it strange and unreasonable that parties did not come to consensus before buying the new policies involved. Buying insurance policy must be a serious decision, as it involves payment of premia. Any cancellation or early termination of insurance policy will incur costs or payment of money wasted.
82. With the evidence now before the Court, there are the following insurance premia to be paid by the parties (HK$2,297.32 for the Daughter to be paid by the Wife and about HK$1,060.68 for the Son to be paid by the Wife and about HK$2,000 for the Children to be paid by the Husband). Without making a factual finding at this stage about the necessity and reasonableness of buying the insurance policies and the amount of premia to be paid, I will only make some analysis at this stage of what are reasonable and immediate expenses at this interim stage.
83. I do not see the justification for the Wife to buy an additional educational insurance policy for the Son in January 2018, especially when she said she was in financial constraint and claimed for maintenance pending suit. I rule that the reasonable sum under this head is HK$2,297.32, the same as the Wife claimed in her Affirmation in support. At the same time, with the existing insurance of the Children, I do not see the justification of the Husband to buy another set of new insurance policies, without reaching agreement with the Wife in advance of how to sort out the existing ones.
84. As a result, for this maintenance pending suit hearing, I rule the reasonable expenses of the Wife and the Children are HK$32,323 (noting that when the Son gets to kindergarten, he is very likely to receive government allowance for the school fees like the Daughter, and by then, the monthly expenses will be lowered), with details as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Utilities |
1,800 |
| Food |
4,500 |
| Miscellaneous household expenses |
300 |
| Helper |
6,000 |
| Total: |
12,600 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
2,000 |
| Transportation |
800 |
| Clothing / Shoes |
800 |
| Personal grooming |
500 |
| Entertainment / presents |
500 |
| Holiday |
500 |
| Medical / dental |
500 |
| Insurance premia |
1,048.72 |
| Mobile monthly fees |
106 |
| Total: |
6,754.72 |
For Children expenses:-
| Items |
Amount HK$ |
| School fees |
4,331 |
| School books and stationery |
300 |
| School transportation |
1,340 |
| Medical / dental |
1,500 |
| Extra-curricular activities |
600 |
| Entertainment / presents |
400 |
| Holiday |
400 |
| Clothing / shoes |
800 |
| Insurance premia |
2,297.32 |
| Other transportation |
400 |
| School uniform |
200 |
| Others: buying books / toys |
400 |
| Total: |
12,968.32 |
What is the ability to pay of the Husband? (Issue 2)
85. In view of the Husband’s income, he is earning HK$43,824 per month as shown in his Form E.
86. In the last paragraph of the Husband’s Supplemental Affirmation, he pointed out that because of the pressure from the present lawsuit and the strike from the difficulties to have access of the Children, he had sought help from psychiatrist and psychologist of the Social Welfare Department, who suggested that the Husband should be on leave from 12th September 2018 to 2nd November. The Husband did not attend work from 12th September to 25th September 2018, and at the time when the Supplemental Affirmation was dated (ie. 27 September 2018), he was trying to be back to work. Besides, after the court hearing on 3rd September 2018, the Husband said he was very disturbed emotionally. He was absent from work for a few days and he estimated that his salary for September would only be about ten thousand odds Hong Kong dollars.
87. I have considered the Husband’s stance. While it is understandable that when divorce proceedings is on-going, especially with difficulties to have access of the Children, much pressure and emotion could be encountered. It is encouraging to know that the Husband had sought for professional help. In view of the evidence and documents before me, I do not think the psychiatric and psychological condition of the Husband is substantiated to the extent of affecting his earning ability. There could be effects on the income of the Husband for a month as alleged, but for the present hearing at this interim stage, I will take the Husband’s income in the amount as stated in his Form E.
88. In relation to the Husband’s expenses, he has provided his monthly expenses breakdown in his Form E, with details summarised in paragraph 34 above. In his Supplemental Affirmation, he had updated his expenses, with details summarised in paragraph 35 above. The total expenses had increased from HK$42,995 to HK$49,822.
89. Some items of expenses of the Husband were agreed, such as utilities (HK$700), food under general expenses (HK$1,500), miscellaneous household expenses (HK$1,300), entertainment / presents (HK$500), Holiday (HK$500), medical / dental (HK$200), tax (HK$7,210), personal insurance premia (HK$392) and engineering membership fee (HK$400).
90. For other items of expenses, Ms Chiu submitted that they are either excessive or should not be considered. These disputed items include rent, meals out of home, transportation, clothing / shoes, personal grooming, saving, repayment to banks, entertainment / presents / holiday for the Children and insurance premia for the Children. I will look at these disputed items in turn.
91. About rent, the Wife is of the view that HK$13,000 per month is too high. With reference, the rent of the Former Matrimonial Home, which was in Yuen Long, for the family was only HK$12,000. She is of the view that as the Husband is living on his own, he could have found a place with cheaper rent. She thinks HK$8,300 is reasonable. The Husband had produced the tenancy agreement for the period from 1 January 2018 to 31 December 2020 in the monthly sum of HK$13,000. He further explained in his Supplemental Affirmation that by staying at that property, the transportation expenses could be reduced.
92. For rental expenses, before hearing oral evidence, which could be tested under cross-examination at trial, I do not make any factual determination today whether the Husband could have found another place with much cheaper rent. For the application of maintenance pending suit, with the provision of tenancy agreement, in view of the amount of monthly rental at that district and the Husband’s reasons of choosing to live there to be nearer to his work place and his parents, I accept that HK$13,000 per month is a reasonable sum for rental expenses.
93. For meals out of home, the Husband states that he needs HK$4,500. The Wife disagrees and she is of the view that HK$2,000 is sufficient. I have considered all the circumstances of this case, including the expenses of food I have ruled for the Wife and the Children. In view of expenses for food under general expenses of the Husband of HK$1,500 already agreed by the Wife, I am of the view that with a broad brush approach, HK$2,000 per month is reasonable for personal food expenses, which is the same for the Wife.
94. For transportation, the Husband states that he needs HK$1,200, while the Wife is of the view that HK$450 is reasonable. Without any breakdown of the sum, I take a broad brush approach, in view of the location of the Husband’s home in Chai Wan, his work place in Kwun Tong, and also the fact that he needs to visit his parents who are living in Ap Li Chau, I am of the view that HK$1,200 is a reasonable sum.
95. For clothing / shoes, the Husband states that he needs HK$1,000. The Wife disagrees. She is of the view that HK$500 is sufficient. Considering that both the Husband and the Wife are working, and reasonable expenses for clothing and shoes are necessary, I rule that HK$800 is a reasonable sum, which is the same as the amount I have ruled for the Wife.
96. For personal grooming, the Husband states that he needs HK$500, while the Wife is of the view that HK$150 is sufficient. It should be noted that in the Husband’s Form E, he only stated HK$100 under this head. I do not see any substantiated evidence or documents justifying such an increase. I rule that HK$150 is sufficient.
97. For saving, the Husband states that he needs HK$1,200. The Wife is of the view that nothing should be considered under this head. Considering the background of the parties and circumstances of the case, as parties are tight financially, I do not see the justification to allow saving in the monthly sum of HK$1,200 at the moment. I disallow this item.
98. For repayment to banks in the total sum of HK$3,328, the Husband explained that HK$1,437 is paid to East Asia Bank and HK$1,891 is paid to the HSBC Bank. The Wife is of the view that nothing should be considered under this head, as there is no need for the Husband to take out loans in the first place.
99. I notice that in the Husband’s Form E, no such item had been included. The Husband explained in his Supplemental Affirmation :-
(a) The HSBC loan was taken out, as his lawyer asked him to pay legal costs in the sum of HK$40,000. Because he did not have enough money, his younger sister had lent him HK$20,000 on 6 March 2018. The loan in the sum of HK$40,000, which was given to him on 10 April 2018, was taken out to repay his younger sister, with the remaining HK$20,000 deposited into his bank account.
(b) The East Asia Bank loan was taken out as he was asked to pay legal costs for the legal aid contribution in the sum of HK$31,784. Because he did not have enough money, his mother lent him HK$32,000. He took out the loan in the sum of HK$32,000 on 31 May 2018 to repay his mother.
100. I have to point out that it is trite law that ability to borrow is considered as financial resources. The ability of the Husband to borrow from his younger sister and his mother when he needs financial assistance is relevant for the court’s consideration of his ability to pay. Besides, it was pointed out by the Wife that as the Husband had terminated an AIA policy and 2 Mass Mutual policies in May 2017 and January 2018, he had been given a total sum of HK$290,000. The Wife alleges that from the Husband’s answer, the money had been spent on various items unnecessarily. If he has spent wisely, he would have enough money to pay the legal costs and there would not be any need to incur loan repayment expenses. I have to point out that at this stage, the Court is not to make factual determination of the whereabouts of or in what aspects the HK$290,000 had been used. But from the evidence before the Court, the total sum of HK$290,000, which is not a small sum, was received by the Husband between May 2017 and January 2018, and it could be shown that the Husband has the ability to borrow.
101. With the evidence before the Court, even if these sums of loan repayments are taking into account, I will, at the same time, consider the ability to borrow as one of the Husband’s financial resources.
102. For entertainment / presents / holiday in the sum of HK$400 for the Children as alleged by the Husband, the Wife disagrees, as she is of the view that these should be included in the HK$10,000 interim interim maintenance paid by the Husband to the Children. I disagree. I am of the view that the interim interim maintenance is a sum given to the Wife for the Children. Even the Husband only has the right of access, it is reasonable for him to spend reasonable sum under these heads on the Children. I rule that HK$400 is a reasonable sum.
103. For insurance premia for the Children, I refer to the consideration and analysis in paragraphs 74 to 83 above. With the reasons stated therein, I am of the view that no amount should be included under this head at this interim stage. Even if these amounts of insurance premia becomes due, I am of the view that the Husband must have financial resources at the time he chose to buy these new insurance policies and to continue paying for the insurance premia. Therefore, I not include any amounts under this head for this maintenance pending suit hearing.
104. To summarise, for this maintenance pending suit hearing, I rule the reasonable expenses of the Husband are HK$34,580, with details as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Rent |
13,000 |
| Utilities |
700 |
| Food |
1,500 |
| Miscellaneous household expenses |
1,300 |
| Total: |
16,500 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
2,000 |
| Transportation |
1,200 |
| Clothing / Shoes |
800 |
| Personal grooming |
150 |
| Entertainment / presents |
500 |
| Holiday |
500 |
| Medical / dental |
200 |
| Tax ($86,520/12) |
7,210 |
| Insurance premia |
392 |
| Repayment to banks ($1,437 to East Asia Bank and $1,891 to HSBC bank) |
3,328 |
| Others: engineering membership fee |
400 |
| Total: |
17,680 |
For Children expenses:-
| Items |
Amount HK$ |
| Entertainment / presents / holiday |
400 |
| Total: |
400 |
105. Having considered all the evidence before the Court, I am of the view that the Husband has the ability to pay maintenance pending suit in the monthly sum of HK$$10,000. It should be noted that at this stage, I had included the total sum of HK$3,328 to be repaid to the bank, but I had indicated my reservation as to the need to take out such loan and the incurring of such loan repayments, which could only be resolved after the credibility of the Husband be tested under cross-examination. But as I had explained above, I accept that the Husband has the ability to borrow from his family.
106. Another point to note is that, I had not included anything for the item of insurance premium for the Children to be paid by the Husband. The reason is that, as explained above about insurance premia for the Children, the Court was shocked to learn that no agreement had been reached about the insurance policies for the Children. While it is understandable that with the interest of the Children in mind, the Husband may do so out of love for and with the intention to protect the Children. However, if there is financial constraint as alleged, no such new insurance policies should be bought at this stage.
What is/are the sum(s) to be ordered (Issue 3)
107. The Wife asked for maintenance pending suit of HK$2,000 for her. The Husband disputed that. He said that the parties had always been financially independent all along. There is material factual dispute in this regard. I notice that both the Wife and the Husband has work. Looking at the Wife’s Form E, the Wife could provide for her personal expenses, as well as her share of the general expenses. I accept that the parties had been quite financially independent during the marriage.
108. Besides, from the Wife’s own evidence, she states that her parents have been helping her financially. With the background of the case, the Wife has all along been living with her parents. With the evidence before the Court, as the Wife’s parents have always been supporting her financially, there is no reason to believe nor is there any evidence to suggest that her parents could not support her any further.
109. From the evidence before me and after consideration of all the circumstances of the case, I am of the view that no maintenance pending suit should be awarded to the Wife.
110. In relation to the maintenance pending suit for the Children, as explained above, I have analysed and made rulings for the reasonable expenses for the Wife and the Children. Considering the Wife’s income, there is still some shortfall. But it should be noted that with the Son finishing preparatory school and starting kindergarten, it is expected the school fees could be much reduced with the government allowance, like what happened to the Daughter. Besides, with the evidence before the Court, there is no evidence before me that the Wife’s parents will stop the assistance for her and the Children, which could be regarded as her financial resources.
111. Having considered the background, standard of living of the parties, financial resources of the parties and all the circumstances of the case, including the principle of fairness and reasonableness, and also the evidence before the Court and parties’ submissions, I am of the view that the same sum as the interim interim maintenance, ie. HK$10,000, should be ordered as maintenance pending suit for the Children.
112. I have to emphasise that the maintenance pending suit ordered is only an interim measure pending the substantive hearing, and that the amounts awarded could be reviewed retrospectively, so that any over or under-provision as a result of the maintenance pending suit order could always be rectified at the substantive ancillary relief trial.
Orders
113. I make the order that the maintenance pending suit for the Children the Husband has to pay do remain at HK$10,000 per month, continue to be paid on the 1st day of each and every month until further order of the court. The payments are to be deposited into the Wife’s designated bank account.
Costs
114. Generally, costs should follow the event. The Wife has to come to court to get maintenance pending suit. However, the Wife does not succeed in all her claims for maintenance pending suit. Interim interim maintenance in the sum of HK$10,000 had been ordered on 21 March 2018. The same amount remains after argument hearing. But at the same time, the Husband has not succeeded in reducing the sum to lower than HK$10,000.
115. Considering the background of the case, all the evidence before the court, the parties’ stance, and how the hearing had been conducted, I am of the view that it is fair to order no order as to costs, including all costs reserved for the application of maintenance pending suit. The parties’ own costs will be taxed in accordance with Legal Aids Regulations. This is costs order nisi, which shall be made absolute within 14 days.
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(Rita So)
Deputy District Judge |
Ms Chiu of Messrs. Chiu & Co., for the Petitioner
Ms Cheung of Rowdget W. Young & Co., for the Respondent
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